Understanding Your Election: How to Choose Your Mode of Trial in Ontario

If you have been charged with an indictable offence in Ontario, one of the first major decisions you will face is your election — your right to choose how your case will be tried. This is not a small procedural step. It is a strategic decision that shapes the entire trajectory of your case, from how long it takes to resolve to the type of courtroom you will stand in.

Most people charged with a crime have never heard the word “election” used this way. They assume a trial is a trial. It is not. The mode of trial you choose determines the court, the judge, and whether a jury will decide your fate. Understanding your options — and choosing wisely — can make a significant difference in the outcome.

What Is an Election?

In Canadian criminal law, an election is the accused person’s right to choose their mode of trial when charged with an indictable offence, or when charged with a hybrid offence where the Crown has elected to proceed by indictment.

This right is codified under s. 536 of the Criminal Code. When you are put to your election, a judge or justice of the peace will ask you how you wish to be tried. You will have three options, and each one places your case on a fundamentally different path.

If you have been charged with a hybrid offence and the Crown elects to proceed summarily, there is no election — the matter is tried in the Ontario Court of Justice. Your election only arises when the Crown proceeds by indictment. For more on how charges are classified, see our guide on summary conviction vs. indictable offences.

The Three Options

1. Trial by Judge Alone in the Ontario Court of Justice (OCJ)

This is the most common election for many criminal charges. Your case is tried by a single judge in the Ontario Court of Justice — the same court where your first appearance took place.

Key features:

• Faster resolution. OCJ matters generally move through the system more quickly than Superior Court proceedings. Court dates are easier to obtain, and the process from election to trial is shorter.
• Less formal. While every criminal trial is a serious proceeding, OCJ trials tend to be less procedurally rigid than Superior Court trials.
• No preliminary inquiry. If you elect OCJ, there is no preliminary inquiry stage. Your matter proceeds directly from election to trial preparation and then to trial.
• Experienced criminal law judges. OCJ judges handle criminal matters every day. They are deeply familiar with the Criminal Code, sentencing ranges, and the practical realities of criminal cases.

For many straightforward charges — including certain drug offences, property crimes, and mid-range assaults — electing OCJ is a sound and efficient choice.

2. Trial by Judge Alone in the Superior Court of Justice (SCJ)

Your second option is to be tried by a judge sitting alone in the Superior Court of Justice. There is no jury. A single Superior Court judge hears the evidence, makes findings of fact, applies the law, and delivers a verdict.

Key features:

• Superior Court judges. These judges are appointed by the federal government and are among the most senior members of the bench. For cases involving complex legal arguments — such as intricate Charter challenges or novel points of law — a Superior Court judge alone can be a strategic choice.
• Longer timeline. Superior Court matters take longer to schedule. Expect a longer wait between your election and your trial date.
• Written reasons are more common. Superior Court judges sitting alone are more likely to deliver detailed written reasons, which can be important if there is a potential appeal.
• Preliminary inquiry may be available. If the offence carries a maximum sentence of 14 years or more, electing SCJ (judge alone or jury) opens the door to a preliminary inquiry. More on this below.

3. Trial by Judge and Jury in the Superior Court of Justice

Your third option is a full jury trial. Twelve members of the community hear the evidence, deliberate in private, and deliver a unanimous verdict of guilty or not guilty. The judge presides over the trial, rules on questions of law and the admissibility of evidence, and — if there is a conviction — imposes the sentence.

Key features:

• Constitutional right. Under s. 11(f) of the Canadian Charter of Rights and Freedoms, any person charged with an offence carrying a maximum punishment of five years or more has the right to a trial by jury.
• Community judgment. A jury brings the perspective of ordinary people to the courtroom. For cases where the facts may generate sympathy, where the accused’s background and circumstances matter, or where the alleged conduct sits in a grey area, a jury can be more receptive than a judge sitting alone.
• Unanimity required. All twelve jurors must agree. If they cannot, the result is a hung jury and the Crown must decide whether to re-try the case.
• Longer and more complex. Jury trials take significantly more time. There is a jury selection process, opening statements, a more formal evidentiary procedure, and jury instructions. This adds weeks or months to the overall timeline and increases legal costs.

For serious charges — including sexual assault, robbery, and firearms offences — a jury trial is a decision that deserves careful analysis with your lawyer.

When Do You Make Your Election?

You are typically put to your election at an arraignment or election date, which is a court appearance scheduled after you and your lawyer have had time to review the Crown’s disclosure. You will not be asked to elect at your very first appearance. The court recognizes that you need to see the evidence before making this decision.

Your lawyer should review all available disclosure — police reports, witness statements, forensic evidence, video, and any other materials — before advising you on how to elect. This is not a decision to make under pressure or without preparation. If you have not yet retained a lawyer, do so before your election date.

Deemed Elections: What Happens if You Do Not Choose

If you fail to make an election when asked, the law does not leave it open-ended. Under the Criminal Code, you are deemed to have elected trial by judge and jury in the Superior Court of Justice for most indictable offences. This is the most complex and time-consuming mode of trial — and it may not be what you want.

Do not let your election be made for you by default. Attend your court date, retain counsel, and make an informed decision.

Offences Where You Have No Election

Not every charge gives you a choice. The Criminal Code carves out two categories of offences where the mode of trial is fixed by law.

Absolute Jurisdiction Offences (s. 553)

Certain less serious indictable offences fall under the absolute jurisdiction of the Ontario Court of Justice. For these charges, you have no election. The matter is tried in OCJ by a judge alone, period. These include:

• Theft under $5,000
• Fraud under $5,000
• Mischief under $5,000
• Possession of stolen property under $5,000
• Failure to comply with a probation order (certain circumstances)

The rationale is efficiency. These offences do not warrant the time and resources of a Superior Court trial or a jury.

Section 469 Offences

At the other end of the spectrum, the most serious offences in the Criminal Code — including first-degree murder, second-degree murder, and treason — must be tried in the Superior Court of Justice by a judge and jury. You cannot elect otherwise, except with the written consent of both the accused and the Attorney General.

If you are facing a murder charge, the mode of trial is effectively predetermined.

Re-Election: Changing Your Mind

Choosing wrong is not necessarily permanent. Under s. 561 of the Criminal Code, you have the right to re-elect — to change your mode of trial after your initial election.

However, there are important limits:

• Before the preliminary inquiry or trial date is set, you can generally re-elect as of right, without the Crown’s consent.
• After certain deadlines, the Crown’s consent may be required. If the Crown does not consent, you may need to apply to a judge for permission to re-elect.
• Timing matters. The further along your case is, the harder it becomes to change course. A re-election late in the proceedings can result in significant delay and may not be granted.

Your lawyer should build re-election strategy into the overall case plan from the beginning.

How Your Election Affects Preliminary Inquiries

A preliminary inquiry is a hearing where a judge examines whether there is enough evidence for the case to proceed to trial. It is only available if:

1. You elect to be tried in the Superior Court of Justice (judge alone or judge and jury), and
2. The offence carries a maximum sentence of 14 years or more of imprisonment.

If you elect OCJ, there is no preliminary inquiry. If the offence carries less than 14 years, there is no preliminary inquiry regardless of your election.

Preliminary inquiries can be a powerful tool. They allow your lawyer to cross-examine key Crown witnesses under oath before trial, to test the strength of the Crown’s case, and to lock witnesses into sworn testimony. For a deeper look at this process, read our guide on preliminary inquiries.

Strategic Considerations: How to Choose

There is no single right answer. The best election depends on the facts of your case, the charges, the strength of the Crown’s evidence, and your personal circumstances. Here are the factors your lawyer will weigh:

When OCJ May Be the Right Choice

• The charge is relatively straightforward and the facts are not complex
• Speed matters — you want the matter resolved as quickly as possible
• The Crown’s case is weak and you want to get to trial fast
• The potential sentence, even on conviction, is at the lower end
• You want to avoid the formality and expense of Superior Court

When SCJ Judge Alone May Be the Right Choice

• The case involves complex legal issues — novel Charter arguments, complicated admissibility questions, or nuanced points of law
• You want a more senior judge who may be more comfortable with difficult legal reasoning
• You want detailed written reasons for a potential appeal
• A jury might be unpredictable given the nature of the allegations

When a Jury Trial May Be the Right Choice

• The charges are very serious and the stakes are high
• The facts may generate sympathy or community understanding
• The Crown’s case depends on the credibility of a single complainant
• You want the protection of requiring twelve people to unanimously agree on guilt
• The alleged conduct, while technically an offence, is something ordinary people might view differently than a judge who sees criminal cases every day

These factors overlap and sometimes pull in opposite directions. That is precisely why this decision requires experienced legal advice.

Why Your Lawyer’s Advice Matters Here

Your election is one of the most consequential strategic decisions in your entire case. It is made early, it shapes everything that follows, and it is difficult to undo. A lawyer who handles criminal defence work in Barrie, Newmarket, and across Ontario will know the local courts, the judges, the Crown attorneys, and the practical realities that affect how each mode of trial plays out.

Do not make this decision alone. Do not make it based on what a friend or family member experienced. Every case is different, and the right election for one person can be the wrong election for another.

Talk to Us Before You Elect

If you are facing an indictable charge in Ontario and your election date is approaching, contact Mor Fisher LLP now. We will review your disclosure, assess the strength of the Crown’s case, and give you clear, direct advice on how to elect.

Call us or reach out through our contact page. The sooner we are involved, the better positioned you will be to make this critical decision with confidence.